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What We Know

For many years Florida followed the Frye standard for the admissibility of expert testimony based upon new or novel scientific evidence. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In 2013, the Florida Legislature, through what has been dubbed the Daubert Amendment, replaced the Frye standard with the Daubert standard. The Daubert standard stems from the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), which established the federal court standard for expert testimony. Since then, federal courts have continued to apply the Daubert standard, and 36 states have adopted the Daubert standard.

The Florida Legislature’s Daubert Amendment was called into question by The Florida Bar’s Code and Rules of Evidence Committee (“Florida Bar Committee”), which, by a 16 to 14 vote, recommended that the Florida Supreme Court not adopt the Daubert Amendment. Many others have spilled much ink debating whether the Daubert Amendment is appropriate. Earlier today, the Florida Supreme Court issued it’s per curiam opinion declining to adopt the Daubert Amendment.

In reaching its opinion, the majority referenced the Florida Bar Committee’s and some commenters’ belief that there were “grave constitutional concerns” associated with the Daubert standard. Those “grave constitutional concerns,” the supreme court noted, include “undermining the right to a jury trial and denying access to the courts.” Ultimately, “due to the constitutional concerns raised,” the supreme court declined to adopt the Daubert Amendment, to the extent that it is procedural. In closing, the supreme court noted that the “constitutional concerns raised” must be left for a future “proper case or controversy,” leading us to expect more from the court when it has before it what it deems to be a proper case.

In an interesting dissent, Justice Polston queried whether the entire federal judiciary and the state courts in 36 states have been applying a gravely unconstitutional Daubert standard, denying “parties’ rights to a jury trial and access to courts.” Justice Polston’s response was, “[o]f course not.” Justice Polston, by posing and answering his own question, to us suggests quite clearly that Florida should be in line with the federal courts and the majority of the states in applying the Daubert standard in lieu of Frye.

As always, please reach out to us if you have any questions. In the interim, we will keep you posted on any further developments.